ISSN 1681-5157
Drug users
and the law in the EU
A balance between punishment and treatment
Drug laws in the European Union (EU)
seek continuously to strike a balance
between punishment and treatment.
The three United Nations (UN)
conventions on drugs [1] limit drug use
exclusively to medical or scientific
purposes. While they do not call for illicit
use of drugs to be considered a crime,
the 1988 Convention — as a step
towards tackling international drug
trafficking — does identify possession for
personal use to be regarded as such.
Signatory countries are thus obliged to
address the illegal possession of drugs for
personal use, but retain their individual
freedom to decide on the exact policies
to be adopted. In framing their national
laws, EU Member States have interpreted
and applied this freedom taking their
own characteristics, culture and priorities
into account, while maintaining a
prohibitive stance. The result is a variety
of approaches EU-wide to illicit personal
use of drugs and its preparatory acts of
possession and acquisition.
Yet, when comparing law with actual
practice, national positions within the EU
seem less divergent than might be
expected. In many countries, judicial and
administrative authorities increasingly seek
opportunities to discharge offenders, or,
failing that, arrangements that stop short
of severe criminal punishment, such as
fines, suspension of a driving licence, etc.
‘Relapse into drug abuse and
crime is a common feature of
drug addicts. Preventing and
treating addiction, its causes
and consequences can be
difficult, time-consuming and
costly — but this is the clear
answer to breaking the
expensive chain of drugs and
crime.’
GEORGES ESTIEVENART,
EMCDDA EXECUTIVE DIRECTOR
Nevertheless, data show that police action
against drug users is rising — possibly
due to greater drug prevalence [2] — and
varies both within and between countries.
Moreover, some cases of illicit personal
use of drugs do continue to reach the
courts and prison sentences are still given,
especially to repeat offenders. Such
inconsistencies in applying the law can
confuse the public and affect the
credibility of the legal system relating to
personal drug use.
An EMCDDA Insights publication,
Prosecution of drug users in Europe:
varying pathways to similar objectives [3]
focuses on the issue in considerable
depth and offers individual country
reports.
Quote: ‘While drug-related arrests are on the increase — with
police resources concentrated on tackling cannabis users — justice
systems in most countries increasingly seek opportunities to discharge
drug offenders, apply “soft” sanctions or consider criminal measures as
a last resort. The message we send citizens — especially the young — is
confusing and often contradictory. An effective prosecution policy on
drugs needs to be more consistent and therefore more credible.’
MIKE TRACE, CHAIRMAN
EMCDDA MANAGEMENT BOARD
Key policy issues at a glance
1. The UN drug conventions leave countries room for manoeuvre to
control illicit possession of drugs for personal use as they see fit,
without rigidly defining specific punishments.
2. Within the EU, laws regulating personal use of drugs vary from
country to country. In some, punishment includes prison sentences;
in others, possession for personal use has been decriminalised
in recent years.
3. Police action against illicit use and possession of drugs, although
differing within and between countries, is generally increasing in the
EU.
4. Prosecutors in most Member States now lean towards non-criminal
sanctions for drug use and possession offences. But firm action,
including imprisonment, is still the usual outcome for addicts who
sell drugs or commit property crime, especially when they are
reoffenders.
5. Alternatives to criminal prosecution — usually of a therapeutic or
social nature — are now widely available across the EU, but their
application and effectiveness vary.
6. Programmes offering alternatives to prosecution can benefit from
coordination between the justice and health systems.
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Briefing 2 bimonthly
Drugs in focus
Drug users and the law — overview
1. UN conventions set the
scene
International drug law is based on the
UN conventions of 1961, 1971 and
1988 [1]. It was Article 3.2 of the latter
that first required signatories to
characterise possession of drugs for
personal use as a criminal offence. But it
subjugates this requirement to the
principles and concepts of national legal
systems, leaving countries leeway to
decide on the exact policy to be
adopted. As a result, signatories have
not felt obliged to adopt uniform legal
measures against those found in
possession of drugs for personal use.
Moreover, the underlying philosophy of
Article 3 of the 1988 Convention is
improving the effectiveness of the
criminal justice system in relation to
international drug trafficking [4].
2. Drug laws vary but show
signs of convergence
Laws regulating the use and possession
for use of drugs vary considerably from
one EU country to another. In some, the
law prohibits such acts and allows prison
sentences. In others, these acts are
prohibited but sanctions tend to be
lenient. The remainder do not consider
drug use and possession for use as
criminal offences.
Developments over the last five years
show similar laws and guidelines
emerging within Member States’ criminal
justice systems in response to drug users
— notably a move towards more lenient
measures for personal drug use. Some
countries now legitimise practices that
had become common. In so doing, they
bring the law into line with police and
prosecution practice, thus enhancing the
law’s credibility.
In Spain, Italy and Portugal, criminal
sanctions do not apply to the possession
of any drugs for personal use. Instead,
sanctions tend to be administrative: a
warning, fine or, particularly in Italy,
suspension of a driving licence. In cases
of addiction, treatment is required. Since
2001, Luxembourg law has envisaged
only a fine for cannabis use and its
transportation, possession and acquisition
for personal use.
In Belgium, Denmark, Germany and
Austria, laws and guidelines indicate
March–April 2002
that first offenders for illicit possession
of drugs, especially cannabis, should
not be punished. Instead, they are
‘invited’ to refrain from taking drugs in
future, often with warnings and
probation. In the Netherlands,
possession for personal use of small
amounts of cannabis is prohibited by
law but tolerated under certain
circumstances.
In Ireland, possession of cannabis is
punishable by a fine on the first or
second conviction but a sentence for
imprisonment is possible from the third
offence onwards.
Meanwhile, in the UK, a suggestion from
the Home Secretary in 2001 that cannabis
be reclassified as a ‘Class C’ rather than
‘Class B’ drug could render possession of
cannabis for personal use a
non-arrestable offence in the future.
In France, a 1999 directive recommends
only a warning for drug-use offences
specifically. Finally, in Greece, Norway,
Finland and Sweden, the law prohibiting
use is reported to be applied ‘to the
letter’.
3. Police action on the rise
In several European countries, the
principle of legality obliges the police to
report for prosecution any offence of
which they are aware. And research [3]
suggests that most individuals suspected
of offences of drug use or possession for
use are, indeed, reported for prosecution.
But police action varies both within and
between countries. Norway, Finland and
Sweden consider targeted police action a
significant deterrent to drug use.
Elsewhere in Europe, issues of public
order and nuisance determine police
intervention in dispersing open drug
scenes. On the whole, police action
against drug use or possession is reported
to occur ‘accidentally’ in the course of
routine patrolling — or when drug use
becomes too visible or too dangerous.
Data to 2000 show that, in many EU
Member States, arrests for drug use and
possession for use are on the rise [2].
In several countries, the majority of arrests
for drug offences are for use or
possession for use (see Figure 2), while
offences of drug dealing or trafficking are
Figure 1 — Most likely outcomes in prosecuting
'possession of drugs for personal use'
Prosecution and conviction, followed by prison,
fines or therapeutic measures
Discharge or diversion leading to
reduction of charges
Discharge or diversion to alternative
measures at prosecution
(by law, directives, guidelines)
Administrative sanctions or
therapeutic measures
(decriminalisation by law)
Note: In this chart, the term ‘possession of drugs for personal use’ refers to possession of a small amount of
drugs, with no graver offences involved (property crime, retail sale, etc.).
NB: Luxembourg data: cannabis only.
Source: European legal database on drugs (ELDD) ‘Country profiles’ (http://eldd.emcdda.org) and EMCDDA
Insights No 5 [3].
Figure 2 — Drug use/possession offences amongst
the total of drug law arrests
%
100
90
80
70
60
50
40
30
20
10
0
Germany
cases, is not seen as sufficient to prevent
criminal proceedings.
Such offences usually lead to criminal
sanctions, with repeat offenders liable to
greater penalties.
France
Ireland
Austria
5. Alternative measures
gain ground
Norway
Portugal
United
Kingdom
1995
1996
1997
1998
1999
2000
Research shows that treatment of drug
users in the criminal justice system can
produce positive results [5], whether
therapeutic, for drug dependence, or
educational, for first-time use [6].
Figure 3 — Cannabis among total of drug
use/possession arrests
%
100
90
80
70
60
50
40
30
20
10
0
Alternatives to criminal prosecution,
usually therapeutic or social, are now
widely available across the EU, although
their impact and quality still vary.
Germany
France
In some countries, such measures are
under-used, due to legal constraints or
general scepticism about their
effectiveness. In others, treatment is the
norm; in a few, its application is impeded
by a lack of resources.
Ireland
Portugal
United
Kingdom
1995
1996
1997
1998
1999
2000
NB: In Figure 2, Austrian data are for misdemeanours (possession, dealing, etc.) involving small quantities.
In both graphs, it should be noted that arrests for drug law offences are defined differently by
EU countries.
Source: 2001 Reitox national reports (standard tables).
far less common. In some countries,
cannabis is the substance involved in
most offences of drug use or possession
(see Figure 3).
At present, there is little evidence that
police action against drug users
predominantly targets the most harmful
situations and patterns of use.
Some 60–90 % of arrests for all drug
offences in Belgium, Germany,
Greece, France, Ireland, Austria,
Finland, Sweden and the UK are for
use or possession for use of drugs.
Cannabis is the main drug involved in
55–90 % of arrests for drug use and
possession in Germany, France,
Ireland and the UK. In Portugal,
where the cannabis rate is among
the lowest, arrests related to
cannabis rose to 37 % of all drug use
and possession arrests in 2000.
Source: 2001 Reitox national reports (standard
tables).
4. Prosecutors look for
alternatives
Today, EU countries’ prosecution policies
favour alternatives to traditional criminal
punishment for drug use and possession.
Judicial authorities often refrain from
criminal sanctions and choose from a
range of alternatives. These can be fines,
formal warnings, suspension of a driving
licence, probation or diversion to
treatment.
Countries where drug addiction is
considered the real cause of a drugrelated crime are more prepared to offer
treatment instead of prosecution, even for
more serious offences. Others are less
lenient, with drug-related crimes leading
automatically to imprisonment.
6. Justice and health:
partnership is the key
When the appropriate treatment is readily
available, includes a social and
rehabilitative component, and involves a
partnership between the justice and the
health authorities, research shows that it
can be cost-effective in reducing relapses
into crime and drug abuse [7].
Crucial to this process is effective,
well-organised cooperation between the
justice and health systems at prosecution
level, targeting the most appropriate
response (and resources) to each
individual.
Simple warnings are the usual response
to illicit drug use and possession for use,
especially for first offenders or when small
quantities of cannabis are involved.
These non-criminal options apply less to
those involved in selling drugs or in theft
to buy them. Any drug dependence that
might have triggered such offences is
generally taken into account, but, in most
March–April 2002
15
Conclusions
5
Drug users and the law in the EU — policy considerations
2. While drug laws vary across the EU, there is a recent trend by Member States to attempt to bring the law
into line with police and prosecution practices. This serves to strengthen the credibility of the law.
3. Effective police action in the field of drugs needs to be targeted primarily at the most harmful situations of
drug-related crime.
4. In the case of drug use or possession, most Member States have implemented mechanisms to divert a high
proportion of arrested users away from criminal punishment.
5. Where an arrested user is drug dependent, research indicates that diversion into treatment can produce
significant health, social and crime-reduction benefits.
6. Close cooperation between justice and health agencies is recommended to ensure the effective management
of diversion initiatives.
Web information
Key sources
[1] United Nations (UN) (1961, 1971,
[4] United Nations (UN) (1998),
1988), 1961 Single Convention on
Narcotic Drugs, 1971 Convention on
Psychotropic Substances, 1988 Convention
Against Illicit Traffic in Narcotic Drugs and
Psychotropic Substances
(http://www.incb.org/e/conv).
Commentary on the United Nations
Convention Against Illicit Traffic in Narcotic
Drugs and Psychotropic Substances 1988,
United Nations Publications, New York,
1998, pp. 48–99.
[2] European Monitoring Centre
for Drugs and Drug Addiction
(EMCDDA) (2001), 2001 Annual report
on the state of the drugs problem in the
European Union, Office for Official
Publications of the European
Communities, Luxembourg, 2001, p.19.
[3] European Monitoring Centre
for Drugs and Drug Addiction
(EMCDDA) (2002), Prosecution of drug
users in Europe: varying pathways to
similar objectives, EMCDDA Insights series
No 5, Office for Official Publications
of the European Communities,
Luxembourg, 2002.
[5] European Monitoring Centre
for Drugs and Drug Addiction
(EMCDDA) (2001), An overview study:
Assistance to drug users in European
Union prisons, EMCDDA Scientific Report,
Cranstoun Drug Services Publishing,
London, 2001, pp. 201–217.
[6] Aos, S., Phipps, P., Barnoski, R.
and Lieb, R. (2001), The comparative
costs and benefits of programmes to
reduce crime, Washington State Institute
for Public Policy, WA, United States
(http://www.wa.gov/wsipp — version 4.0).
[7] Hough, M. (1996), Drugs misuse
and the criminal justice system: a review
of the literature, Paper 15, Home Office,
1996, United Kingdom.
OFFICIAL PUBLISHER: Office for Official Publications of the European Communities.
© European Monitoring Centre for Drugs and Drug Addiction, 2002.
EUR
EXECUTIVE DIRECTOR: Georges Estievenart.
EDITORS: Kathy Robertson, John Wright.
AUTHORS: Danilo Ballotta, Brendan Hughes, Chloé Carpentier.
GRAPHIC CONCEPTION: Dutton Merrifield, UK.
Printed in Italy
Drug-law ‘Country profiles’
http://eldd.emcdda.org/databases/
eldd_country_profiles.cfm
Decriminalisation in Europe?
Recent developments in legal
approaches to drug use
http://eldd.emcdda.org/databases/
eldd_comparative_analyses.cfm
Main trends in national drug laws
http://eldd.emcdda.org/trends/
trends.shtml
Data on arrests (EMCDDA 2001
Annual report data library)
http://annualreport.emcdda.org/en/
sources/index.html
Drugs in focus is a series of policy
briefings published by the European
Monitoring Centre for Drugs and
Drug Addiction (EMCDDA), Lisbon.
The briefings are published six times a
year in the 11 official languages of
the European Union plus Norwegian.
Original language: English. They may
also be downloaded from the
EMCDDA web site
(http://www.emcdda.org). Any item
may be reproduced provided the
source is acknowledged. For free
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of new products.
TD-AD-02-002-EN-D
1. The underlying philosophy of the 1988 UN Convention, and its requirement to characterise possession of
drugs for personal use as a criminal offence, relates more to strengthening the fight against international
drug trafficking than to criminalising drug users.
6
This briefing summarises key aspects of, and trends in, the way the law treats drug users in the EU today, and
indicates primary sources for further information. The EMCDDA believes the following points could form the
basis of future policy considerations: